What Is 'Reasonable Doubt'?

This article is reprinted with permission from the October 10, 2011 edition of The Recorder.

What Is 'Reasonable Doubt'?

The level of certainty necessary for a conviction is difficult to define, but augmenting the jury instructions could help jurors, explains UC Hastings' Lara Bazelon.

Lara Bazelon

2011-10-06 02:53:15 PM

Reasonable doubt has been a critical component of the American criminal justice system for more than 200 years and a due process requirement since 1970, when the Supreme Court held that no state could win a conviction without extinguishing it.

For the criminally accused, reasonable doubt is a stark dividing line: freedom and vindication on one side, incarceration, stigma and lost civic rights on the other. In capital cases, reasonable doubt is the difference between life and death. But try coming up with a definition in a sentence or two. Or five. It isn't easy. As a concept and a value, reasonable doubt is monumentally important, and yet its true meaning remains elusive.

What is reasonable doubt, and how does a juror arrive at a place beyond one? Some states and at least two federal circuits are silent on these questions, reasoning that the meanings of the terms are self-evident. "Reasonable doubt," the Seventh Circuit U.S. Court of Appeals has declared, "speaks for itself." But judicial condemnation of any attempt to mathematically quantify reasonable doubt, and the seemingly endless variety of reasonable doubt definitions used from state to state, circuit to circuit, and courtroom to courtroom, suggest that the confidence behind this assertion is severely misplaced.

The Supreme Court has noted that "[a]ttempts to explain the term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury." Nonetheless, the court has decided a string of cases suggesting some attempt is usually better than none at all, noting studies documenting juror confusion when judges leave the phrase undefined. At the same time, the court has declined to put limits on attempts to give content to the term other than to hold, in Cage v. Louisiana, 498 U.S. 39 (1990), that equating reasonable doubt with "substantial doubt" and "grave uncertainty" was an unconstitutional dilution of the prosecution's burden of proof.

In its most recent pronouncement on the subject (Victor v. Nebraska, 511 U.S. 1 (1994)), the court upheld (or at least declined to condemn) explications by trial judges in California and Nebraska that seem antiquated, obscure, disturbingly similar to the definition struck down in Cage, or some combination of all three. The Victor majority concluded that it is not a due process violation to tell jurors, "You may find the accused guilty upon the strong probabilities of the case," to equate reasonable doubt with "an actual and substantial doubt," and to equate the absence of reasonable doubt with "moral certainty" — at least when surrounded by other qualifying adjectives and phrases.

Left virtually free rein, state and federal judges use these and other phrases and techniques: Some try terse definitions, others longer ones, and some reason by analogy. The Ninth Circuit model instruction, which is used by many federal trial courts, states that "reasonable doubt is a doubt based on reason and common sense," a tautology that I found maddeningly unhelpful when arguing my client's case to a jury as a deputy federal public defender in Los Angeles.

A more precise definition, put forth by the Federal Judicial Center, states in relevant part: "Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. ... If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty."

These definitions, which equate reasonable doubt with a "real possibility" of innocence and proof beyond a reasonable doubt as a "firm conviction" about guilt are perhaps best understood when contrasted with their opposites: a hypothetical possibility of innocence and a conviction about guilt that may be readily shaken loose from its moorings. And yet a troublesome question is still left unresolved: a "firm conviction" or a "real possibility" based on what? Many people make extremely important decisions based on inchoate feelings rather than empirical evidence, a proclivity that this instruction does not expressly discourage.

It may be acceptable to say, as Justice Potter Stewart famously did about pornography, that while he might never succeed in defining it, "I know it when I see it," but substitute the words "reasonable doubt" for "pornography" and discomfort quickly sets in. After all, isn't this type of instinct-based decision making precisely the kind of anti-reason jurors should avoid? When it comes to finding someone guilty, with all the life-altering — or even life-ending — consequences that attach to such a determination, we want jurors thinking with their heads (facts, evidence, legal standards), not with their guts ("it just feels right to me").

So perhaps it is best to further refine the Federal Judicial Center definition by adding "based on the evidence presented to you" after the words "firm conviction" and "real possibility" to drive home the point that a reasonable doubt or a level of certainty beyond one must be founded on facts and law, not impulse or instinct.

Still, I would argue that this formulation, while better than most, is necessary but not sufficient. Jurors asked to take on the moral and intellectual challenge of weighing someone else's fate should also have the benefit of an analogy that sheds additional light on the state's burden and emphasizes the weight and irreversibility of their decision.

The best known and most often used analogy instructs jurors that reasonable doubt is the kind of doubt that would cause them to "hesitate to act" in making the most important decisions in their own lives. (See Bishop v. United States, 107 F.2d 297 (1939), quoted with approval by the U.S. Supreme Court in Holland v. United States, 348 U.S. 121 (1954)).

The Federal Judicial Center dismisses this analogy as "misplaced," stating that "decisions we make in the most important affairs in our own lives — choosing a spouse, a job, a place to live and the like — generally involve a very heavy element of uncertainty and risk taking. They are wholly unlike the decisions jurors ought to make in criminal cases."

But it seems doubtful that choosing any particular job or place to live is one of the most important decisions most jurors will make in their lives — particularly in this economy, when people change jobs and move around with relative frequency. And while choosing a spouse undoubtedly is, it's hard to fathom most people doing so burdened by a "very heavy element of uncertainty." Indeed, choosing a life partner is precisely the type of fraught and permanent decision that requires a "firm conviction" and likely would not be made if there was a "real possibility" (as opposed to a hypothetical one) that the candidate under consideration was the wrong one.

Even if the hesitate-to-act analogy is flawed, I would argue that there is still a compelling reason for its use: It speaks in the language of restraint, urging jurors to stop and ask themselves some hard questions before handing in the verdict form. Was I this certain when I decided to get married (or not to get married)? Have children (or not have children)? Euthanize my dog? Am I that firmly convinced, or is there a real possibility that I am wrong?

The hesitate-to-act analogy, used in combination with the refined Federal Judicial Center's instruction equating reasonable doubt with a real possibility of innocence, isn't perfect. But in providing a workable definition and a practical and immediate way to apply it, it is, I think, better than most. Roughly translated, "beyond a reasonable doubt" means "based on the evidence presented, I am as certain as I can be." As judges, prosecutors and defense attorneys, we all share an interest in having our juries achieve that level of certainty — or realize they cannot — with as much meaningful and helpful guidance as we can possibly give them.

Lara Bazelon is a clinical teaching fellow at UC Hastings law school. From 2001 to 2008, she was a deputy federal public defender in Los Angeles.

Reprinted with permission from the October 10, 2011 edition of The Recorder. © Copyright 2011. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, call 415.490.1054 or cshively@alm.com.

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